When Good Patents Go Bad

will writes "The Washington Post has a good review of patents in the information age. The insanity of the US patent system has been chronicled on this site numerous times in the past (for example, an FTC report on patent policy, some patents for obvious applications such as Microsoft patenting local weather, and Amazon patenting inside book searching). The Washington Post article does a good job of overviewing IP issues today, why the current US patent systems fails in the information age, and gives an example of patent extortion. Excuse me while I patent my DNA."

Comments

The Washington Post's web patent

[corebreech]

Here.

Re:The Washington Post's web patent

[Zog The Undeniable]

Seriously, that's a good example of the proper use of a patent - for ingenious hardware widgets. IP patents, on the other hand, are downright evil.

What makes a bad patent?

[mgcsinc]

One aspect seems central to many of the patents which are generally accepted to be absurd or insane: they are patents on processes for selling goods or services rather than on the goods and services themselves or their means of production. There doesn't seem to be enough awareness of this discrepancy between these types of patents and ones which we consider to be reasonable. Online retailers such as Amazon, for example, may claim that they have two customer bases, book-buyers and advertisers, and that the website itself is a product for the advertisers, but in truth their real customers would seem to be the former....

Re:What makes a bad patent?

[taniwha]

I've always thought that a great patent should pass the Edison test: "do you think that your patent would impress Edison?" (assuming Edison was up on modern technology etc etc).

Or in other words - "is it a great wonderfull new idea rather than just an incremental change that would be obvious to any engineer faced with the same problem?"

IMHO probably one of the worst problems with the current patent system is the inability of the patent examiners to judge the "obvious to a practioner of ordinary skill in the field" test. A few years back I was engaged on an x86 cloning project .... it's a patent minefield, with the spectre of Intels lawyers looming at every term .... we came up with a wonderfull (though complicated) way to get around one of Intels primary (and IMHO obvious, with prior art) patents .... only to have a patent appear from a 3rd company with exactly the same solution ... since both companies had come up with the same solution faced with the same problem boxed in by the same Intel problem patent I would argue that the solution was obvious to "ordinary computer architects" at the time ... but there's no way I can see for a patent examiner to know or understand that - and since there's no way to bring these issues up untill after the patent has been granted - which means going to court ....

The patent minefield isn't really getting any bigger ... it'sm just that the mines keep getting closer together ...

Re:What makes a bad patent?

[forevermore]

their real customers would seem to be the [book buyers]

Don't discount the revenue of advertisers to retailers. If Amazon is anything like most grocery/department stores, they get a lot of money for product placement. When I was just out of high school, I worked for a company that was paid to go around to grocery stores, take down a bunch of product from the shelves and put it back up in a different order. Why? Because the stores don't own the layout on the shelves - certain products do (in my case, Gillette happened to own the shaving cream and deodorant shelf layouts).

But this has nothing to do with patents.

Re:What makes a bad patent?

[dslbrian]

You're honestly of the impression that there is actually a sizable minority of people who would like to invent something with no guarantee to their right of exclusive production?

I work as a EE in a company and I've been in this situation myself before. I've become so disgusted with the patent process that I've decided that I'm not filing any more patents. If I was working independently as an entrepreneur I might have a different opinion - and it is my belief that that is the real justification behind patents - to protect the entrepreneur long enough to get their product to the market.

However the patent system today doesn't serve to protect individuals, its now nothing more than a corporate club for litigation against any would be competitors. Its used by companies that are already well established and are in no danger of not getting a product to market. I remember someone once telling me the way patent settlements are reached is that the lawyers all gather in a room and the companies put their stacks of patent papers side-by-side, the difference in height yields the settlement fee. More recently there has been a trend towards reviving old patents on things that are obvious or have been in use for decades (ie. Forgent's "jpeg" patent). Its nothing more than a money grab by parasites abusing the patent system.

So back to the original point, yes I've invented things before - but no I don't care if the company I work for gets exclusive rights to it. You see it takes time and effort on my part to file a patent, and what do I get for my efforts - a small wad of cash, big freaking deal. Now on the other hand if I don't patent it, I get to take that knowledge and use it again, for myself or for any other company I work for. Further as soon as the circuit I worked on gets fabricated, it becomes prior art and can no longer be patented after that. Its a selfish motive on my part (no more selfish than the patent grabbing company though), but in the end my method serves myself and everyone else better (well at least the people I work with since they get direct benefits of that prior knowledge)...

Re:What makes a bad patent?

[Minna Kirai]

"is it a great wonderfull new idea rather than just an incremental change that would be obvious to any engineer faced with the same problem?"

Few of Edison's own patents meet that test. The phonograph may have been new, but the light bulb (his most famous invention, in 1879) had already been created by others as early as 1841. His own modifications were incremental. Yet of course he still got a patent.

Other legendary inventors who did incremental changes to existing ideas (followed by the inventor who made the original, but less efficient device):

• Sam Morse : Charles Wheatstone
• Orville & Wilbur Wright : Samuel Langley
• James Watt : Thomas Newcomen

Arguably, however, patents are better given to someone who makes an incremental improvement, rather than a revolutionary one. Patents (and all of "Intellectual Property") are only meant to encourage progress. Genius, heroic inventors are quite likely to pursue their insight regardless of the prospect of patent protection- and if they succeed and earn a patent, it's likely to take a decade or more before the concept really becomes profitable. Potential competitors will be slow to recognize and accept the totally new idea.

The phonograph and airplane, for example, both had patents granted for them, and both became huge industries (one with annual revenue in the billions, the other in the trillions). But the patents were almost expired before the business models really started to get into wide-scale profitability.

But, an incremental improvement is more vulnerable to being rapidly duplicated. Someone prespiring away at finding the right combination of gas and filament to make the light-bulb really practical runs a true risk of someone else buying his first product and starting to sell a reproduction just 3 months later.

A much fairer patent system would give the examiner more options than just a yes/no response. Not all inventions are inherently deserving of the same length of protection. If the government recognized this, the assignment of bad patents would be far less damaging, as only the best patents would get the long, multi-decade terms.

Software patents especially (if they are allowed to exist at all) show last much shorter than those for physical machines. Suppose the Amazon 1-click patent had lasted for just 2-3 years. That'd be not nearly as bad as the prospect of continuing to avoid one-click ordering in 2017.

A list of some other ridiculous patents...

[tcopeland]

...can be found on Pieter Spronck's aptly named ridiculous patents page. "Scoring based upon goals achieved and subjective elements" - very nice.

Another reason for ridiculous patents

[Brahmastra]

It's not just that it's easy to get ridiculous patents through the Patent office. There are incentives in most companies for employees filing patents such as cash, stock options, etc. This not only inspires some people to come up with good ideas, but it also inspires a lot of people to come up with crap just so that they can get some $$$ (yeah I'm one of them too).

Re:Another reason for ridiculous patents

[willtsmith]

We need to have financial incentives in place for people who defeat patents with prior art searches. Basically, you would put bounties on killing patents as a way of clearing the roles of nonsense patents. This would be the IP euivalent of selling-short (betting on stocks going down).

A challenge phase needs to be put in place so that our patent killers (as well as competitors) have a chance to savage a patent with prior art claims before it officially goes on the rolls.

Finally, we need new categories of IP that try to make things a little more clear. Copyright and Patent no longer covers the range of intellectual property out there.

Patent - Applies only to physical machines. Applies specifically to a problem and the machine that solves it.

Copyright - A written and performed work of art. Computer programs do NOT apply.

Software (4 years)- A very specific process for creating something new. Data structures may be involved, but only in conjunction with a related algorithm. Alternative methodoligies for using the same data formats (reverse engineering) is specifically allowed.

Method/Application Patents (4 years) - Protect a novel way of doing something. This may apply to a business method or a software application.

Pharma (15 years) - A chemical composition for curing a specific ailment or modifying a biological process. All Pharma patents must be vetted. That is, the research must be done showing that it actually does what it CLAIMS it does.

Pharma Use (non-exclusive 10 years) - A set of research that proves an additional use for an Pharma substance. This could apply to something as mundane as aspirin. A court could grant intellectual property rights proportional to the scope of a new use for that substance which would increase it's use. For example, proving that Aspirin helps prevent heart attacks increases the use of Aspirin.

This one sounds weird, but it encourages people to do more research on existing substances. Pharma research is EXPENSIVE. This research should be rewarded since it adds to the level of human knowledge and increases the use of EXISTING products making the whole process more effecient.

The IP would work as a royalty granted by IP courts levied on producers of that substance.

Research patents (non-exclusive 10 years) - Like Pharma patents, this would expensive basic research. It would be a royalty applied to products which profit from knowledge derived from expensive research.

The most obvious IP in this area would be human and animal genome. It's not an invention, it's an expensive process of discovery. Additional types of IP could relate to materials science, and even advanced physics (like the guys slowing light down, quantum entanglement methods (advanced communications)).

Engineered Organisms - A company that engineers an organism would have rights to re-produce and sell that organism. Any one else with access to that organism could breed it, but not for profit.

Re-production of the organism using unique methodologies would be allowable and would constitute a unique organism IP. Though, other IPs may apply.

New IP categories. The IP office would have staff and processes devoted to exploring new categories of IP and their associated rights, and fees. They could write legislation and submit it to congress for consideration and ultimate approval.

Re:Another reason for ridiculous patents

[maximilln]

-----
Pharma (15 years) - A chemical composition for curing a specific ailment or modifying a biological process. All Pharma patents must be vetted.
-----
Background...

-----
That is, the research must be done showing that it actually does what it CLAIMS it does
-----
Have you heard of angiogenesis inhibitors? They are chemical compounds which battle cancer by preventing tumours from growing additional blood vessels. If the tumour cannot grow more blood vessels then it, theoretically, will starve itself into remission.

I was at a project meeting one time where the department head was singing the praises of the latest round of developmental angiogenesis inhibitors. He was pointing specifically to data from mouse models which showed that, after the compound had been introduced to a mouse with a tumour, the tumour decreased in size and entered remission as opposed to mice who had been given a placebo. The size of the tumour was determined by cutting it out of the mouse and using a balance to determine its mass.

To verify that the compound was doing what it was supposed to be doing I asked if anyone checked the vasculature in the tumour. Were the veins and arteries smaller or thinner? Was there evidence that the tumour decreased in size due to reduced vasculature? Was there any evidence that the compound was working as an "angiogenesis inhibitor" and not by another mechanism? The department head looked like a fish out of water for five seconds and then began a 30 second rant about how I was an incompetent fool that needed to go to graduate school before I understood anything about biochemistry.

Needless to say the company was still pursuing filing a patent for the new "angiogenesis inhibitors" when I left. It never ends.

The lawyers will win.

[grub]

This is going to be a giant windfall for the lawyers in all this as there will have to be an overhaul of the patent laws and system.

Here's a prediction too: after the "fecal matter hits the rotary cooling device" in all this patent fiasco you'll see an increase in the number of people going to law school. Mainly for IP law, too. Don't laugh, remember how the non-geek masses took computer science in the 90's because that's where the money was?

Re:The lawyers will win.

[penguinoid]

Good, then they'll start outsourcing lawyers. Can't wait for the next version of Buggy Law+.

All I can say is...

[Zog The Undeniable]

Tim Berners-Lee must be kicking himself for not patenting the WWW. Or are there actually some decent altruistic people out there who want to make the world a better place?

Re:All I can say is...

[Anonymous Coward]

Or are there actually some decent altruistic people out there who want to make the world a better place?

Yes, there are.

Re:All I can say is...

[elwinc]

Perhaps Berners-Lee read Don Lancaster's Patent Horror Stories (pdf) or some of the other stuff in his Patent Avoidance Library. Don makes a pretty good case that the patent system is at best misunderstood and frequently inimical to the small inventor.

I patent....

[sirsampson]

Posting without reading the article and without spell checking.

What's the story about? :)

Re:I patent....

[Anonymous Coward]

You cannot !! Slashdot editors will claim "prior art" for that.

I just have one question for the writer.

[saskboy]

Excuse me while I patent my DNA."

Would that be YOUR DNA, or your clones'?

Re:I just have one question for the writer.

[peragrin]

a better question is whether or not his parents have already patent their DNA, if so does that consitute prior art. They can easily claim to have had it longer, and it is a derviative work, of merging to to prior arts.

Comment removed

[account_deleted]

Comment removed based on user account deletion

My views

[frodo from middle ea]

Patents are not inheritantly bad.

Some ingenious ideas , need to be patented so that the inventor can reap the benefits of his hardwork. But inventions which leave us saying "f@#king DUH!", should seriously be quentioned.

What USofA needs is a better patent challanging system. and by challanging a patent I don't mean claim ownership of that patent, I mean demonstrate the use of that idea so commonly in public domain, that no one actually deserves the patent.

Re:My views

[Brahmastra]

I agree with you.. But on the other hand, there are ideas that leave us saying "DUH!" but until someone actually came up with that idea, no one saw it.

One problem with many patents..

[overbyj]

is that they are fishing expeditions. IANAPL (...patent lawyer) and I don't pretend to understand the intricacies of computer-related patents, but there is a fundamental flaw i the patenting world.

For example, as a chemist, I search the patent literature trying to find out what chemical reactions have been reported. It is a well-known fact that you have to take the chemical patent literature with a huge grain of salt (no pun intended!) because many times, the reaciton simply doesn't work the way it is reported to work. The chemical patent literature is not a peer-reviewed process like scientific journals are. It is significantly harder to get an article published in the chemical literature than to patent that material.

I guess what I am getting at, is that there is rampant patenting taking place with few significant things to show for it. Chemists patent anything and everything they can in the off-chance that someone will use it in an industrial process. They are just total fishing expeditions. I know that there will certainly be people out there to correct me with their own opinion, but in my opinion, it just points to a flawed patent system.

Bitter Protest against Patents (n copyrights some)

[argoff]

There seems to be this attitude that the suffering of slaves prior to 1850 was something that only happened back then. That it has nothing to do with now, that we are more civilized, more modern, more mature, and more sophisticated. With it comes the arrogance that what happened then, means nothing now, that what happened there has no value here, that the great torment and suffering back then can safely be ignored now as we blow off history and all the values that go with it in terms of understanding, freedom, markets, property rights, and the information age.

Surely anyone who claimed that there is no incentive go grow cotton without "niggers" on the plantation would be considered a barbaric. But if someone claims that there is no incentive to create intellectual and knowledge works without copyrights and patents, then society calls them enlightened. If someone had said that the great wealth of America rested on slavery as a property right and the plantation system, they were a foolish idiot. But if someone says that the great wealth of societies in the information age rests on "Intellectual Property", then they are called wise. Anyone who says that slavery was about property rights and not control, is a liar. However, if they say that copyrights and patents are not about control, but "Intellectual Property" then they are considered trustworthy. How about - if you don't like slavery - don't own slaves, and if you don't like copyrights no one forces you to buy those creations. How about - if you don't believe in slavery, you must be an anarchist, if you don't believe in copyrights and patents you must be communist. How about - you are a thief if you free slaves from the plantation, you are a thief when you copy someones "Intellectual Property".

So why are we spoon-feed these poor logical explanations over and over again? Because, like the rapist who drugs his victim and gently penetrates her, rather than beat her and tear into her where all the scars, blood, and bruises can be seen. Like the assassin who befriends and mis-places his victims heart medications, rather than pull out a rifle and pop a bullet in the head. Copyrights and patents are the pinnacle of quiet violence. So seemingly innocent, so seemingly civilized and friendly, so hard to see and identify any direct evil, any direct consequence. After all, what could be less harmless then providing an incentive to artists and inventors, right? But do they really promote art - or just promote works that have the most hype rather than the most meaning and educational value? Do they really help inventors, or do they hinder collaboration and sharing in a way that would put a police state to shame?

Perhaps the old lady has none to blame when her patented diabetes medication is too expensive to afford anymore. Who can the workers blame when the proprietary technology they bet their career on becomes obsolete and it becomes ever harder to relearn from scratch as they get older. Who can a child in Africa blame when they are dying of AIDS, and there are no generics to treat it! Who do we blame when researchers seeking a cure for cancer encounter massive obstacles to sharing there individual research for fear that their peers will get one up on them, get a key patent, and lock them out! Who do our nations students blame when tabloids are pennies on the dollar, but textbooks dollars on the page! Who do we blame for Hollywood culture being such a failure, and so strongly influencing society in their own failed image.

As people die because patented medicines are too costly and alternatives too sparse, and the needy go without, not because of genuine shortage, but because artificial human made restrictions. Our government who is the enemy of overt violence, has become the friend of quiet violence. Our government who has organized world wars to protect our freedoms, now promotes a world order that will take them away. The democracy that has allowed us to fight for our rights with votes and politics rather than violence and bloodshed has now become

information patents: life as info

[gobbo]

If you're concerned about the dangers of rampant patenting, especially by the 'Life Sciences' sector, check out the research by the ETC group.

They started as an agriculture research and advocacy group (RAFI) and morphed into ETC about the time they started discovering how broad the patenting system's enclosure of life forms and genetic structures was getting. It's an issue with huge implications, since ideas, biological structures, and living beings are being patented in sometimes outrageous ways.

Gillettes new razor 37 has patents

[Anonymous Coward]

I've refused to buy any more Gillette products after their latest advert in the UK informed me in a boastful manner that their latest razor has 37(or was it 47? ) patents. For crying out loud, its a razor.

Copyright it, not Patent your DNA

[Dareth]

Copyright your DNA. If you copyright your DNA then you can sue your spouse/partner for copyright infringement if they get pregnant or get you pregnant!

Sure to insure domestic tranquility.

America's Goofiest Patents

[GillBates0]

Google's your friend: Totally Absurd Inventions

Categorized and arranged alphabetically in all their royal glory.

My favorite: The Blind Spot Toy:
USA patent 4,477,3358 / Issued 1994
It is never too early to start your Christmas holiday shopping. Why not be original this year and avoid the toys that everyone seems to be buying? Why not give the gift that keeps on giving, the "Apparatus for Aligning Image with Blind Spot of the Eye"!! Patented in 1975, this toy allows the user to locate their blind spot! In order to play this amazingly fun game, strap the toy tightly on the top of your head.

Close your left eye and focus on the dangling tab with your right eye, then switch eyes. Voila! The dangling tab has disappeared into your blind spot. Not only will this invention provide endless hours of fun and good times for everyone (especially at parties), but anyone wearing this apparatus will unquestionably become irresistible to the opposite sex. Enjoy!

Rerun

[tds67]

When Good Patents Go Bad

This is a rerun. I saw this on Fox a couple of weeks ago.

Arn't we allready there?

[yoshi_mon]

Last time I heard our law schools were turning out 1 potental lawyer for every 4 americans.

So are more lawyer really the anwser?

It could always be worse

[Anonymous Coward]

I'm waiting for someone to patent "A technique of stretching the rectum to a dangerously distended size with the purpose of photographing it in such a manner that it can be displayed on a network of computers in order to spread the photographs to unsuspecting users."

Why VisiCalc wasn't patented

[tigertiger]

There is an interesting article by Dan Bricklin, one of the inventors of VisiCalc (the first spreadsheet programs), on why they didn't patent VisiCalc. It's simple - patenting software was only possible after 1981. Think what the industry would look like if people had been able to patent spreadsheets (VisiCalc), full-screen word processing (WordStar and many others before), and windowing systems (Xerox PARC and Apple Lisa).

The bad news is that Bricklin thinks software patents are bad, but since they are here, you have to try to patent as much as possible. I guess soon we will have to take out patent-infringement insurance with premiums as high as our salaries.

One Click Local Weather reports

[Camel Pilot]

I recently modified the shopping cart on my wife's hot sauce store to give a discount if the client is identified as Mozilla or Linux O/S. A friendly feature to encourage the use of alternative browsers (and desktop operating systems). This is the first cart with such a "feature" I know of.

After I finished, it was a _tough_ one night hack, the thought occurred to me that some folks have patented less (ie One click shopping, local weather etc.). It demonstrated to me the need to be change the patents laws to prevent the locking up of obvious or trival application of emerging technology.

At least USPTO admits it...

[syphax]

"We're focused on making sure that we're kicking out the best quality patents,"

-- Jon W. Dudas, deputy director of the patent office

This may explain why so many bad ones get granted?

Acacia

[One Louder]

The porn guys raised the alarm on Acacia quite a long time ago but were actively ignored by the mainstream because they were "porn". Now Acacia has a few wins (and money) under its belt and is starting to go after the mainstream video streamers.

It was a very clever strategy on the part of Acacia - first go after the porn folks (nobody would come to their defense), then the university and online education folks (no money to fight), then the broadcasters (already under siege by the trade associations), then the toolmakers. They probably could have been nipped in the bud if people had paid attention early on.

At this point, it's important to drag the big players into the fight - folks who are being sued by Acacia need to subsequently sue the tool vendors (Microsoft, Real, Apple, Macromedia) for selling them allegedly unlicensed patented technology.

EU patent law campaign

[levell]

This might be interesting if you are currently writing to your local MP (or equivalent for EU countries other than the UK) as the FFII are imploring you to do if you don't want the EU to pass bad software patent law. It might be an idea to mention this article in your letter as it gives an easily readable summary of what if wrong with the American system that is written by a "respected" source.

Let's hope we get the law as the EU parliament framed it....

Re:Bitter Protest against Patents (n copyrights so

[Anonymous Coward]

I find your analogy between there being no incentive without slaves and no incentive without copyright to be poorly thought out (or perhapse just poorly articulated).

A more apt analogy for cotton with regards to copyright would be:

"There would be no incentive to grow cotton if no one would _buy_ cotton, because they could get it for free. "

I know that it isnt possible to get cotton for free, but you have to understand that it IS possible with regards to most copyrighted works.

Your slavery argument when applied to copyright is more accurately:

"If the _cost_ of creating copyrighted material went up significantly, there would be no incentive to create copyrighted material."

As you can see, both these statements are clearly incorrect, and I would say that your analogy bends the truth to make a point that isnt there. Your peice is clearly well written, but you should work on your analogies. :)

Anti - Patents?

[mhotas]

There ought to be such a thing as antipatents. These would work like regular patents, in that they would be registered, and somebody gets to claim credit, but also disavow ownership. So whatever the idea is, it's explicitly in the public domain, and whoever claimed it first gets some positive attention. Kind of like the GPL, but not just for code.

The really scarey part

[WindBourne]

It is not that patents are being granted here in the US to large companies who make large contributions to Politicians. Rather, it is the fact the we are pushing this insane approach to patents on other countries and they are actually considering it.
We have created a monster and that should be obvious to all. Yet other nations and regions are considering it. What a nightmare.

Re:IP/slavery meme

[argoff]

Actually there is a story behind this. It was at a time when i was doing alot of thinking about copyrights, but every time i thought about the problems with copyrights - some of the logic - it sounded like somthing i had herd before. I finally came up with an essay comparing it with slavery and sent it to RMS. Believe it or not, he replied, and said somthing like I should be carefull because the suffering caused by slavery was far more atricious than what is suffered by copytights. Like more often than not, he was right.

So anyhow I was chewing on that for awhile, and long behold a week later I stumbled upon an article in the berkley daily planet writen by a pharmacutical exec trying to justify some AIDS patent lawsiuts against africans. The arguments that they had no incentive without patents, and that they were generous to Africans sure sounded like there was no incentive to grow cotton, and we are kind to our slaves on the plantation. From my history lessons.

The meaning of the 1850s today, the quiet violence, the nature of rights, the historical perspective, all those have stories too - but i just dont have time to elaborate here.